This judgment was handed down remotely at 10.30am on 30 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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DUNCAN ATKINSON KC:
- In December 2014, the Claimant engaged the Defendant's legal services in relation to his claim for asylum in the UK. The letter of engagement was dated 11 December 2014. The asylum claim was successful. Thereafter, the Claimant further engaged the Defendant's legal services to act for him in the preparation and submission of a claim to the European Court of Human Rights (hereafter 'ECtHR'), and a second retainer was entered into for this purpose on 18 March 2016. This second instruction was not successful, and resulted in a complaint by the Claimant to the Legal Ombudsman (hereafter 'LeO'), in relation to a failure to submit the claim before the relevant deadline. The complaint to the LeO also included the assertion that "the defendant breached confidentiality rules by releasing information to the Home Office".
- On 28 December 2023, the Claimant accepted the provisional decision of the LeO, and on 12 February 2024, the LeO issued its final decision in relation to the Claimant's complaints, in which it did not make a finding of breach of contract but did propose a financial remedy. The provisional decision addressed specifically the failure to meet the deadline for submission to the ECtHR, and identified the complaint about breach of confidentiality as being "not a service complaint which we have accepted for investigation". A payment of £50,000 was accepted by the Claimant as a full and final settlement of his complaints.
- The present proceedings were issued against the Defendant on or around 25 June 2024. The Claimant seeks £2,431,658.97 from the Defendant "for breach of contract and confidentiality" which he alleges "resulted in significant financial and emotional harm, and endangerment to his family and witnesses". The claim relates to an allegation that the Defendant disclosed the Claimant's address, and that of his children, to her legal representatives in the context of the LeO complaint, and to other third parties, which disclosure, it is alleged, "put the lives of the Claimant and his family at risk". The third parties identified, beyond the Defendant's legal representatives, are the Home Office and the ECtHR. It is this claim for breach of contract and confidentiality that is the primary matter for this Court now to consider.
- On 27 November 2024, the Defendant made an application for reverse summary judgement, pursuant to CPR r.24.3, or alternatively for the Claimant' claim form and particulars of claim to be struck out, pursuant to CPR r.3.4(2). In support of that application, the Defendant served a detailed witness statement from John Leathley, the solicitor with conduct of the matter for Caytons, the solicitors representing the Defendant. A significant amount of relevant material was exhibited by this witness statement (Exhibit JL/1). Correspondence, to which I shall return, makes clear that the Claimant received both the application, and the witness statement served in support. More recently, a comprehensive and helpful skeleton argument has been served on behalf of the Defendant from Paul Fisher of counsel. The Claimant is a litigant in person. The Court has not been served with any skeleton argument or witness statement from him.
- The case was listed on 17th March 2025 for the Defendant's application to be heard. The Claimant did not attend, and it follows that the Court has had to determine whether it is appropriate to hear the application in his absence. Before addressing that question, however, it is necessary first to refer to the Order already made in these proceedings in relation to anonymity.
Anonymity
- The Defendant received the Claimant's unsealed Application Notice dated 16 July 2024 (in relation to which the Defendant was neutral) to direct that any future hearings be held in private. The reason for the application advanced was that the public revelation of the Claimant's personal details, or those of his family, would place them at risk of persecution. It is important to note that the Claimant did not, at that time, make an application that the proceedings be conducted in accordance with the Closed Material Procedure (hereafter 'CMP'), pursuant to CPR Part 82.
- On 2 October 2024, Master Davison granted an Order (hereafter referred to as 'the Davison Order') in response to the Claimant's application and also directed that documents in these proceedings be anonymised. The Claimant has been identified as 'KKK' since that order was made. Master Davison included a note of reasons which stated: "I have directed that the claimant's claim is to be heard in private and this will be the default position for future hearings. But (and I wish to emphasise this) this is a default position and it will be for the judge on each future occasion that this case comes before a court to decide whether the hearing / all of the hearing is to be in private or whether the open justice principle is to prevail. That will depend very much on the matters which are to be discussed. In the event that the defendant seeks to strike out the claim, the claimant will have the right to file evidence, including a witness statement from himself, in response. There is no need for a witness statement at the present time. If there is no strike-out application, directions will be given for a witness statement from the claimant, which would usually be after the parties have exchanged relevant documents."
- In accordance with the terms of the Davison Order, the proceedings on 17 March 2025 were held in camera, and all materials provided to the Court were redacted to protect the Claimant's identity.
- The Claimant has served a draft application on the Defendant seeking to challenge the Davison Order. He applies to set it aside because, he contends in particular, that Master Davison declined to hear an application (not included in the application served on the Court) for the use of the CMP procedure, and that he has been prevented from the service of witness statement evidence by the Davison Order. Given that this is a draft application, rather than one properly served on the Court, it has not been necessary or appropriate for this Court to entertain or resolve that application. However, I would observe that no proper application had been made in accordance with CPR Part 82 in relation to CMP at the time that the matter was before Master Davison, and that it is clear from the reasons given by Master Davison that he was not preventing the Claimant from serving witness statement evidence. His observations were as to the timing of such evidence, not the fact of it. These draft applications are, therefore, misconceived.
- The Claimant also provided a draft application to appeal against the Davison Order, effectively on the same basis that he requests that it be set aside. Again, no formal application has been served, in accordance with the CPR, and I have therefore not been required to entertain or determine that application. I have, however, taken account of that which the Claimant asserted in each draft application in so far as it assists me as to his position, in his absence, on matters of relevance to the present application.
- The Defendant also applied for the Davison Order to be revoked. This application is made on the basis that the Claimant has made a complaint against the Defendant to the Solicitors Regulation Authority which it is difficult for her to address whilst the anonymity order remains in force. It was accepted on her behalf that this application to discharge the Davison Order is dependent on the Court's approach both the question of whether the matter can proceed in the absence of the Claimant and, if so, as to the merits of the present Defendant's application. I shall therefore return to this question below.
The absence of the Claimant
- CPR r.23.11 states:
(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in their absence.
(2) Where – (a) the applicant or any respondent fails to attend the hearing of an application; and (b) the court makes an order at the hearing, the court may, on application or of its own initiative, re-list the application.
- There is no question but that the Claimant did not attend on 17 March. It is well recognised that this does not mean that the Court should lightly proceed to resolve the Defendant's application in his absence, but should consider the matter with the greatest of care. The decision is to be approached by reference to any information as to whether the Claimant was aware of the hearing, if so to his reasons for not being present, and whether his interests can be properly protected in his absence. Here, the Claimant did make contact with the Court by email both on 15 March and again on 17 March (the day of the hearing). He stated, first, that he had not received formal notice of the 17 March listing from the Court. It is accepted by the Defendant that he is correct in this assertion. He went on to assert that such formal notice was required pursuant to CPR r.39.5. That rule does not address notice of a hearing by the Court. That is addressed at r.24.4, which does not go on to prevent a hearing proceeding in the absence of such notice where the parties can be shown to be aware of it.
- The Claimant further asserted that he had not been consulted as to the fixing of the date of the hearing, that on the contrary the Defendant had misled the court as to his lack of co-operation with that listing, and that it was inappropriate to list the present application before the resolution of his outstanding applications. As to the listing of the hearing, and the questions both of whether the Claimant was consulted about the date and was aware that the hearing had been fixed for 17 March, I was helpfully taken through the relevant correspondence by Mr Fisher.
- At the hearing before Master Davison on 2 October 2024, the possibility of an application by the Defendant for summary judgement and/or to strike out the claim was ventilated and direction given that any such application be made by 29 November. It was in fact made on 27 November, and the application was served on the Claimant, together with the witness statement of John Leathley. That the Claimant did receive those materials is confirmed, for example, by an email that he sent to Caytons Solicitors on 3 December 2024, in which he referred to them expressly.
- On 6 December 2024, the Defendant's solicitor emailed the Claimant seeking an answer as to his availability for the present application to be made by 10 December. On 13 December, the Defendant's solicitor informed the Court that no reply as to availability had been received, and it was thereafter that the present hearing was fixed for 17 March 2025. On 28 February 2025, the Claimant emailed the Defendant, copying in the Court Listing Office. He stated: "The Defendant's representatives have sent me a series of emails from which it appears that a hearing has been scheduled for 17 March 2025." It is clear from this email that the Claimant both had received a series of emails from the Defendant about the present application and its listing, and was aware of the date for which the application was listed. In that same email, the Claimant also asserted "I sent an email to the Defendant's representatives in which I clearly stated that I agreed to any date following the submission of my applications".
- There are in fact 4 such outstanding applications. In addition to those to which I have already referred, namely applications to set aside and/or appeal the Davison Order, and an application for use of the CMP, there is an application to join Caytons Solicitors as a co-defendant to the action. I have construed what the Claimant was saying in the 28 February email to be that he was contending that the present application should not be listed until his applications had been resolved. He was accepting, I note in passing, that he had been consulted about the date and had responded in relation to it.
- However, as I have made clear, there are in fact no properly served applications from the Claimant before the Court awaiting resolution. There are drafts which the Court has seen, but on which it cannot yet act. Moreover, in relation to important aspects of his challenge to the Davison Order, for example as to the service of witness statements, the applications proceed on a clear misunderstanding of the terms of the Order. Although he asserted in the email of 28 February that the applications "have been duly filed and granted fee remission certificates", there is no evidence before the Court to this effect. They remain therefore draft applications. The Claimant has not purported actually to serve any of his applications, provided to the Defendant in draft in October 2024, in the intervening 5 months. I agree with Mr Fisher's submission that this delay does permit the inference that any application to adjourn the present application until the resolution of an application for CMP could be indefinite given that there is still no proper application for CMP.
- More than this, there is a circularity to the Claimant's position. The Claimant asserts in his draft application to set the Davison Order aside "The claimant is bound by non-disclosure obligations under the Official Secrets Act 1989 and the National Security Act 2023. In light of these obligations, the claimant submitted a request to the court, asserting their right to invoke CPR Part 82, which, in the claimant's view, permits the court to adopt special measures to protect confidential information, particularly during hearings, so that the claimant may present their case without the risk of disclosing protected information." In other words, unless and until the Court grants an application for CMP, pursuant to CPR Part 82, the Claimant cannot advance any of his applications, including his CMP application itself, and he cannot respond to the Defendant's application for summary judgement or strike out. In other words, nothing can happen until his CMP application is granted.
- However, he provides no evidence to support his asserted need for CMP, either in a witness statement from himself or in any form of documentation from any third party capable of confirming the existence of any non-disclosure obligation. It follows that there is no basis for the Court to delay the resolution of the Defendant's application to await any future resolution of any application in fact properly served by the Claimant in the future. Moreover, the question of whether the Claimant was or is under threat is inextricably linked to the present application by the Defendant, and this falls to be determined on the material that is before the Court, in the absence of specific evidence served by the Claimant.
- That it was clear to the Claimant that he should serve such evidence is also itself clear. It was made clear by the reasons given for the Davison Order that I have quoted above. It was also made clear in the statement of John Leathley, of the content of which, for reasons I have already set out, the Claimant was aware. Although the Claimant asserted in an email to the Defendant on 4 March 2025 that he was precluded from serving evidence, that is a fundamental misunderstanding of the position. Even if he felt constrained from serving a witness statement, he could, and in my judgement should, have served some form of material from a relevant state agency or other third party to substantiate the non-disclosure obligation to which he has referred.
- Moreover, the Claimant's assertion of a need for heightened secrecy for these proceedings in view of the risk to himself and his family has to be assessed in the context both of his own actions to date, and the terms of the Davison Order. The Claim Form served on 24 June 2024, and sealed by the Court on 25 June, was made in the Claimant's own name and included his address, both at the outset and as the address for service. In the Claim Form there was no suggestion of a risk to the Claimant. On the contrary, although he did refer to the need for privacy in the proceedings, he said that this was "due to the potential presentation of security-related information". No application was made for CMP as part of the Claim, although I accept that the Claimant may not have been aware of CPR Part 82 at that time. However, he did not refer to the concern for his family's safety that is now said to underpin that application.
- In any event, once the Davison Order had been made on 2 October 2024, the Claimant did have the privacy he had sought, and anonymity to protect him. He could thus have made any application he needed to, without its publication, and have served evidence again without a risk of its publication. That is why he sought, and was granted the Davison Order, and yet he has chosen not to avail himself of that protection for evidence that it was clear that he needed to provide in support of his claim and/or the applications he wished to make, and provided in draft.
- It is also right to note that the Claimant has not actually made a formal application to adjourn the present application. On 3 March 2025 he asked the Court Listing Office if he needed to make such a formal application, and he was told in terms that he did. The correspondence again shows that he was aware of the 17 March listing, and that he was required to apply to adjourn. He has not done so.
- I have concluded, on this analysis, that the Claimant failed to attend the hearing on 17 March without good reason, and despite being fully aware of that listing, the reasons for it, and the need to make proper application to adjourn if that was the course he wished to pursue. His reasons for wishing to delay the present application do not, on a proper analysis, justify any such delay, which would be at risk of being open-ended given his failure to serve the various applications which he contends, incorrectly in my view, should be resolved first. Ultimately, the question of whether it is appropriate to proceed in his absence depends on whether he is correct to contend that he and his family are placed at risk by the proceedings. That question is also fundamental to the present application by the Defendant, and I therefore determined to hear that application in the Claimant's absence and to revisit the question of that absence in the light of my conclusion as to that question.
The Defendant's Application
- The Defendant now applies in the first instance for reverse summary judgement, pursuant to CPR r.24.3, or, in the alternative, for the Claimant's Claim Form and Particulars of Claim to be struck out, pursuant to CPR r.3.4(2)(c). The relevant provisions state as follows:
CPR 24.3: The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.
CPR 3.4(2): "Power to strike out a statement of case 3.4 (1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out(GL) a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.
- These applications are each advanced on the same 7 grounds. Mr Fisher confirmed, in my judgement correctly, that each ground is self-standing and that if any one is made out this would entitle the Court either to enter summary judgement or to strike out the claim.
- The grounds, as set out in the Defendant's skeleton argument (at paragraph 45) are:
"A. Failure to make out breach/ implied waiver a complete defence: The Claimant has failed to particularise the Documents which he alleges have been disclosed such as to cause him loss. This is essential to his claim and, without specifying exactly what has allegedly been wrongfully disclosed, his claim must fail;
B. There is no claim for breach of confidentiality: the Defendant was entitled to disclose Documents by virtue of the Asylum Retainer and/or the ECtHR Retainer and/or there was an implied waiver of confidentiality;
C. The Claimant cannot prove causation: there is no evidence before the Court of any real threat to the Claimant so as to cause him loss. Despite being given an opportunity to adduce such evidence, none has yet been presented to the Court;
D. The Claimant has not suffered a loss: Central to his claim is the assertion that the Claimant had to sell property in Surrey following the disclosure of confidential Documents. There is no evidence that the property he appears to allege was sold was his. In fact, there is every indication that such property was in his wife's name. Furthermore, the property that appears to be the subject of his claim for loss was not known to the Defendant prior to the date when the Claimant alleges the address was disclosed to third parties;
E. The Claimant's claim is an abuse of process (as per CPR 3.4(2)(b)): the matters that are the subject of this claim have already been considered by LeO;
F. The Claimant's claims are time-barred; the Claimant's claims are time barred pursuant to sections 2 and/or 5 of the Limitation Act 1980 (the "1980 Act");
G. Failure to comply with CPR/Practice Direction: The Claimant has failed to comply with CPR 16.4(1)(a) and paragraph 7.4 of Practice Direction 16 such that 11 the Claim Form and Particulars of Claim are liable to be struck out pursuant to CPR 3.4(2)(c)."
- It seems to me that these grounds can be analysed in two groups. First, there are a series of grounds which address the Claimant's compliance with essential procedural requirements, namely:
(a) The contention that the claim is time-barred (ground F);
(b) The alleged failure of compliance with the CPR (ground G);
(c) The contention that the issues have already been resolved by the LeO (ground E).
Any one of these would justify the striking out of the claim by reference to CPR r.3.4(2)(b) and/or (c).
- Secondly, the remaining grounds address the merits of the claim, and whether the Court can conclude that it has no real prospects of success and/or discloses no reasonable grounds for bringing the claim, namely:
(a) Failure to demonstrate a breach (ground A);
(b) Failure to demonstrate a breach of confidentiality (ground B);
(c) Failure to demonstrate a causative breach (ground C);
(d) Failure to establish loss arising from any breach (ground D).
- Mr Fisher, on behalf of the Defendant, agreed with that analysis, and I consider it convenient to approach the grounds in that order. That approach allows me, first, to determine if the test for striking out the claim is met, and then to determine whether, going beyond that, the test for entering reverse summary judgement is met. In doing so, I remind myself of the principles that underpin the application, for present purposes, of both r.3.4 and r.24.3, which were helpfully summarised in the Defendant's skeleton argument (at paragraph 43) as follows:
a. "The Court must consider whether the Claimant has a "realistic" as opposed to a merely "fanciful" prospect of success (Swain v Hillman [2001] 1 ALL ER 91);
b. A "realistic" claim is one that carries some degree of conviction, meaning one that is more than merely arguable (ED&F Man Liquid Products v Patel [2003] EWCA Civ 472);
c. It is not for the court to conduct a mini trial when applying the summary judgment procedure (Swain v Hillman) and the court should be mindful of the evidence that might be placed before it at trial (Royal Brompton Hospital NHS Trust v Hammond (No. 5) [2001] EWAC Civ 550);
d. However, where there are short points of law and construction, "if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it" (ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725)".
Ground F: The Claim is time-barred
- The Defendant submits that the present claim against the Defendant is time barred pursuant to sections 2 and/or 5 of the Limitation Act 1980. In short, a claim for breach of contract or for breach of confidentiality needs to be brought within 6 years of the cause of action having arisen. It is clear that the present claim is a claim for breach of contract and/or breach of confidentiality, by reference to the Claim Form and Particulars of Claim.
- According to the Claimant's own pleaded case, the initial breach was committed when the Defendant transferred unparticularised documents to her lawyers, Reynolds Porter Chamberlain LLP ("RPC"). This occurred on 17 March 2017, after the Claimant made his original claim against the Defendant on 24 August 2016. The Claimant brought proceedings on or around 25 June 2024. As a consequence, on that analysis, his claim is time-barred as the 6-year limitation period expired at the latest on or around 17 March 2023. The same analysis leads to the same conclusion if instead of the transfer of documents to the Defendant's solicitors in March 2017, the cause of action is said to arise from the date on which that retainer was terminated, namely 22 September 2016.
- In his Reply to the Defence, the Claimant advances two arguments to counter this ground.
- At paragraph 47 of his Reply to the Defence, the Claimant asserts that the 6 years is rather to be calculated from the date on which there was a refusal to perform the contract pursuant to the retainer on 20 September 2018. However, this assertion is contrary to the Claimant's primary case that there had been a breach of the Defendant's duty of confidentiality during the currency of the retainer. It would be necessary for it to do so for it to represent, as he alleges, a breach of contract. That retainer came to an end, as his own Particulars of Claim make clear, on 22 September 2016. The date on which he focuses is not the date that the cause of action arose, but the date on which the Claimant is entitled to assert that he became aware that it had done so.
- To the extent that the Claimant seeks to rely on the date of knowledge occurring on or around 20 September 2018, it is appropriate to consider the application of section 14A, Limitation Act 1980. This, at section 14A(4)(b), extends the period, where it is longer than the 6 years from the cause of action having arisen, to a period of 3 years from the acquisition of knowledge. It follows that if the limitation period is calculated, by reference to section 14A, as 3 years from 20 September 2018 then his claim is still time-barred as this only extends the limitation period up to 20 September 2021.
- At paragraph 48 of his Reply to the Defence, the Claimant asserts: "According to Section 32 of the Limitation Act 1980, if the Claimant becomes aware of the breach later due to the concealment of information, the limitation period may be calculated from the moment the Claimant first learned that his confidential information had been disclosed to third parties. The Claimant first learned about the disclosure to the persons mentioned in paragraph 54 of the Defence no earlier than 1 1 September 2024."
- Section 32, Limitation Act 1980 does indeed provide for the postponement of limitation in cases of fraud, concealment or mistake. Section 32(2)(b) more particularly addresses the deliberate concealment of a breach of duty in circumstances in which such breach was unlikely to be discovered. However, that is not apt to describe the present case. The Defendant here, on the Claimant's own case, disclosed information to third parties, identified as the Home Office and the ECtHR quite explicitly and with the Claimant's knowledge. Such disclosure was a necessary part of the applications for asylum and for appeal that the Claimant instructed the Defendant to make. Moreover, as the Claimant accepts, this matter was drawn to his attention by those acting on the Defendant's behalf, and thus far from concealing it, they disclosed it to him. It follows that there is here no fraud or concealment so as to engage section 32 of the 1980 Act. It further follows that the Defendant is correct to assert that the present Claim is time-barred, and should be struck out as such.
Ground G: Failure of compliance with the Rules and Practice Direction
- In his statement in support of the application to strike out the claim, Mr Leathley at paragraphs 65-66 identifies respects in which the Claimant has failed to comply with CPR r.16.4. This requires the Claimant to provide a concise statement of the facts on which his claim relies. However, it is contended here that the Claimant has failed to identify or particularise the following important matters:
(a) The documents and/or information that he alleges were disclosed in breach of confidentiality;
(b) The basis for his assertion that any such disclosure posed a risk to the safety of himself and/or his family;
(c) The basis for his claim that he is prohibited from disclosure of pertinent information by the Official Secrets Act, or other restriction imposed by the Security Services;
(d) The basis for his claim to loss arising from the sale of a property for less than its commercial value because disclosure of information and created a risk to his family;
(e) The basis for his other claims to loss (to which I will return in more detail when I consider ground D below).
- In approaching this ground, I remind myself that the Claimant is a litigant in person. However, first, I note the observations in this regard of Lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 at paragraph 18: "The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter's legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take."
- Secondly, I note that the Defendant raised the various areas in which there had been a failure of necessary particularity in the Request for Further Information that was provided on 16 September 2024, and the Claimant did not avail himself of that opportunity to fill the gaps in the information necessary to the proper statement of his case.
- Moreover, as Mr Leathley identifies in his witness statement at paragraph 66, there is additionally a requirement pursuant to paragraph 7.4 of Practice Direction 16 for a Claimant to particularise the words of any oral agreement, and to set out by whom, when and where those words were spoken. The Particulars of Claim aver (for example at paragraphs 37, 41, 46 and 49) that the Claimant asserted a particular need for confidentiality of material relating to his family's safety, which was accepted by the Defendant. There is, however, a failure to particularise the words by which this oral agreement was reached, by whom, or on what occasion. In short, I accept that there have been failures by the Claimant to satisfy the requirements of CPR r.16.4 and Practice Direction 16, paragraph 7.4. This would entitle me to strike out the application by reference to CPR r.3.4(2)(c). However, despite the exhortation of Lord Sumption quoted above, I would be reticent in doing so in relation to a litigant in person if it were the only ground for such a determination. However, in combination with Ground F that the claim is time-barred, I do consider that a proper basis has been established to strike out the claim pursuant to CPR r.3.4(2)(c).
Ground E: Abuse of process
- On 26 August 2021, the LeO wrote to the Defendant's legal representatives, Caytons, identifying that the Claimant had made three complaints against her:
(a) The Defendant firm failed to submit the application to the ECtHR by the deadline required by the court;
(b) The Defendant firm failed to provide all necessary advice on the application; and
(c) The Defendant firm breached confidentiality rules by releasing Documents to the Home Office.
- The Defendant now submits that it is an abuse of process for the Claimant to bring a claim which has already been the subject of a determination by the LeO, which communicated its final decision on 12 February 2024, by reference to a provisional decision which the Claimant accepted on 28 December 2023, and in relation to which the Claimant was awarded £50,000 in compensation.
- My attention in this regard is drawn to section 140, Legal Services Act 2007. Section 140(4) states as follows: "If the complainant notifies the ombudsman that the determination is accepted by the complainant, it is binding on the respondent and the complainant and is final." Section 140(11) states as follows: "Neither the complainant nor the respondent, in relation to a complaint, may institute or continue legal proceedings in respect of a matter which was the subject of a complaint, after the time when a determination by an ombudsman of the complaint becomes binding and final in accordance with this section." The question, therefore, is whether the fact that the breach of confidentiality was referred to the LeO, which has reached a determination of the Claimant's complaint precludes any claim by him in reference to that breach of confidentiality now.
- I consider there to be a flaw in the Defence approach in this regard. It is correct that the breach of confidentiality was "the subject of a complaint" to the LeO. However, it is not as clear that there has been "a determination by an ombudsman of the complaint" in the sense of the confidentiality complaint. The wording of the provisional decision accepted by the Claimant in this regard is material. It was (suitably redacted) as follows:
"…In response to the Case Decision [the Claimant] said that the firm guaranteed the protection of evidence and witness testimonies involved in the case. However, without his knowledge, the firm surrendered his testimony, including his address and witness details, to a government representative. He said this led to horrific consequences such as the secret services knowing his exact home address. [The Claimant] explained that he was forced to sell his home for £250,000 less than the value and quickly move his family. He said that one of the witnesses on his asylum case has gone missing after agents of the government conducted a search in his home. In response to these comments, I am sorry to hear of the allegation that the firm surrendered [the Claimant's] personal details to the government. There is no dispute that this could lead to terrible consequences. However, I am unable to comment on this allegation as it's not a service complaint which we have accepted for investigation."
- I do not read this as a determination of the breach of confidentiality complaint. On the contrary, the only proper reading of these words is that the LeO declined to reach a determination on that complaint. I do not consider, therefore, that there is a binding determination by an ombudsman that precludes the Claimant from bringing the present claim, and do not accept that it is an abuse of process for him to do so, by reference to section 140, Legal Services Act 2007. It follows, that I do not find that this ground founds a basis to strike out the claim pursuant to CPR r.3.4 (2)(b). However, as the grounds are self-standing, that does not of itself prevent the Court from reaching a different conclusion by reference to other grounds.
Ground A: Failure to make out breach
- The Defendant's central contention is that the Claimant has not established evidence of any disclosure which resulted in any endangerment of the Claimant or his family, and further that he has not established evidence as to the consequences of any breach, even if he could demonstrate one. In short, it is asserted that the Particulars of Claim, taken at its height, is without merit.
- The starting point is the Claim Form which asserts, it is to be noted in the Claimant's name and including his then address in Cobham, a demand for compensation for "breach of contract and confidentiality. This breach resulted in significant financial and emotional harm, and endangerment to his family and witnesses". That, it follows, is what the Claimant is required to prove.
- By reference to the Particulars of Claim, the Claimant asserts that he received "legally binding assurances" that the information obtained in the context of his asylum claim would "not be disclosed to third parties under any circumstances, except as required by the law". He asserts that the Defendant breached these assurances through disclosures she made to her solicitors, Caytons, after the Claimant complained to the LeO about the failure to meet a deadline in his subsequent ECtHR application. The information disclosed "including but limited to the Claimant's children's place of residence", put the Claimant and his family at risk and "after the Claimant learned that the Defendant had disclosed confidential information under the Asylum contract", which included his "country and address of his residence", he was forced to "relocate and sell their house in Surrey". He again refers to his address in Surrey when he sets out the losses occasioned by the breach later in his Particulars of Claim.
- In his Particulars of Claim, the Claimant further asserts that he terminated the Defendant's engagement in relation to his second instruction of her, for the ECtHR claim, on 22 September 2016, and that he first learned of the Defendant's breach of confidentiality on 20 September 2018. In the absence of the Claimant, I have acted on the basis of the chronology as he has particularised it. I have also taken into account the items he exhibited to his Particulars of Claim which include the initial engagement letter with the Defendant, which is dated 11 December 2014 and is addressed to the Claimant at his Esher address. The engagement letter includes certain standard terms and conditions, as did the second retainer in relation to the ECtHR claim. I will return to salient aspects of those standard terms in due course.
- The Defendant made a Request for Further Information on 16 September 2024, and the Claimant was asked for the address that was sold, as he alleged. He stated that this was a property in Bagshot. He further identified that this address had been purchased on 20 December 2016 in the name of his wife. The property was sold on 9 August 2019 for £50,000 less than had been paid for it.
- The Request for Further Information made on 16 September 2024 is also significant in that it included a request that the Claimant identify "the complete list of information that the Claimant alleges has been disclosed by the Defendant and upon which he relies in bringing this claim". Any answer to that request after 2 October 2024 would be subject to the protection of the Davison Order as to anonymity, and there is no reason why the Claimant could not fully particularise any document he alleges was disclosed in breach of contract or confidentiality, and/or evidence as to the risk posed by any such disclosure to the safety of himself and his family. No such further particularisation or itemisation has occurred.
- The following flow from the Claimant's own answers:
(a) He provided an address in Esher when he engaged the Defendant's services. I have seen no evidence that she knew of, or corresponded with him at any other address.
(b) In any event, the Bagshot address, which is the address the Claimant alleges was sold because of breaches of confidence, was not purchased until December 2016, and thus after the Claimant had terminated his retainer of the Defendant in September 2016.
(c) The Bagshot property did not in fact belong to the Claimant, but to his wife. It follows that any actual loss in relation to the sale was occasioned by her not him.
(d) The sale of that address occurred a little under a year after the Claimant became aware of the breach of confidence on which he relies.
- On the Claimant's own particularised case, therefore, the Defendant asserts, and I accept the Claimant has not established that the Defendant was in possession of the address of the Bagshot address so as to be able to share it with any third party. There is no evidence, moreover, that she did so.
- There is, however, evidence that the Claimant and/or his wife themselves shared their address with a number of third parties. My attention has been drawn to the following:
(a) On 2 December 2016, a TR1 Transfer of Registered Title document was completed in relation to the Bagshot address, identifying the Claimant's partner as the new transferee. This is a document provided to the Land Registry, and represents a public document. Enquiry of the Land Registry would identify the address in the name of the Claimant's partner. This is not, therefore, an address that was kept private. It is of note, in passing for present purposes, that no claim to beneficial ownership in the name of the Claimant was advanced where it should have been in the TR1 document. This is relevant to the consideration of whether the sale of the property occasioned loss to the Claimant, as opposed to his partner.
(b) On 13 October 2017, an AP01 Appointment of Director form was completed in relation to a company with Companies House. The director in question was the Claimant, and his name was provided along with the Bagshot address as the service address. It follows that the address would have been available in response to searches with Companies House.
(c) The same consequence would have applied in relation to the registration of the incorporation of a company with Companies House on 23 March 2018, and the appointment of the Claimant's partner as a director of that company at that time. The Bagshot address was again used, and again responsive to Companies House searches thereafter.
- In addition, it is relevant to note the use by the Claimant of his address in these proceedings. The Claim Form itself, dated 24 June 2024, included the name and address of the Claimant, and included no suggestion that either needed to be kept private. Even after the Davison Order was made, affording the Claimant confidentiality, on 27 January 2025, the Claimant issued a Notice of breach of confidentiality by reference to information on Caseboard, which, through the case number, can be linked back to the Claim Form, and thus to the Claimant's address. The fact that this linking is possible underlines the significance of the Claimant issuing his claim in his own name and with his address, and undermines his assertion of the need to protect both.
- In my judgement, the Claimant's assertions as to breach of confidentiality relating to his Bagshot address cannot be reconciled with his willingness, and that of his partner, to use that address in such public contexts. That is further underlined by the fact that when the Bagshot address was sold in 2019, a new address was provided to Companies House through a AD01 change of address form on 22 December 2019. The material I have seen therefore shows the Claimant and his family to be content to share their address, and to allow that address to be publicly identified. That contradicts his case as advanced in his Particulars of Claim. I take account of the fact that the Claimant was not present at the hearing on 17 March 2025. However, I note that the Particulars of Claim are not to be viewed as the sole exposition of the Claimant's position. Rather, it can be read in conjunction with his response to the Request for Further Information from the Defendant and his Reply to the Defence. That remains the totality of the Claimant's case now, given that there is no witness statement responsive to the present Application by the Defendant from the Claimant. I am, therefore, satisfied in accordance with the approach in ICI Chemicals v TTE Training, referred to above, that I have available to me the evidence necessary to determine the present application.
- Accordingly, by reference to the Claimant's own chronology of events, his central claim that there has been a breach of confidentiality in relation to this country of residence and address is not made out. The only proper conclusion from the material I have considered is, first, that the Defendant was not in possession of, and thus capable of disclosing, the Bagshot address, which it is clear from the Claimant's pleaded case is the material address. Secondly, there is no evidence that she did so. Thirdly, the Claimant has failed to demonstrate that his Bagshot address was a matter to be protected from disclosure, given his willingness and that of his partner to include it in public registers and records. Fourthly, the Claimant has not provided an evidential basis to demonstrate that there was a risk to the safety of himself and his family if his address was revealed. He has provided no material himself or from any third party as to the risk, and his and his partner's use of the address contradicts this assertion.
Ground B: Implied waiver
- In my judgement, the conclusions that I have reached in relation to Ground A should be assessed together with the conclusions I reach as to Ground B, which asserts that there was no breach of confidentiality because any information shared by the Defendant occurred in accordance with the terms of her contact with the Claimant, including an implied waiver where she shared such information with solicitors she instructed when the Claimant complained of her conduct.
- As I have already indicated, the Claimant exhibits the initial engagement letter from the Defendant sent to him at his Esher address on 11 December 2014. That included the standard terms and conditions which thereafter applied to that engagement. Indeed, the engagement letter states that the Claimant's "…continuing instructions will amount to acceptance of our terms and conditions of business"
- It includes the following clauses relating to data protection:
"13.1 We process and disclose personal data relating to persons in the course of its business. The data may be transferred abroad in connection with those purposes.
13.2 Your personal data will be used by us strictly in accordance with our obligations under the Data Protection Act 1998. That data will be used in discharging the services agreed under this engagement letter and for related purposes. Including updating and enhancing client records, analysis to help us manage our practice, statutory returns, crime prevention and legal and regulatory compliance. We may send your personal data to private and governmental agencies, such as the UK Border Agency, the court service and British consulates, embassies or High Commissions abroad and, where necessary, authorities including non-British consulates ad embassies either in the UK or elsewhere, including by email unless you have instructed us in writing against the use of email correspondence. You consent to our exporting your personal data outside of the European Economic Area, where necessary, in order to discharge the services agreed under this engagement letter, even though some of those countries may not have an adequate level of data protection legislation in relation to the processing of personal data. In relation to any other third parties (other than those to whom we need to disclose your personal data in discharging our services to you) we will disclose such information only with your consent or where we are required to do so by law or where it is necessary in connection with legal proceedings or regulatory requirements
13.3 Our use of you information is subject to your instructions, the Data Protection Act 1998 and our duty of confidentiality. Please note that our work for you may require us to give information to third parties such as expert witnesses and other professional advisers ad as set out above. You have a right of access under data protection legislation to the personal data that we hold about you.
13.4 We may from time to time send you information which we think might be of interest to you. If you do not wish to receive such information please notify our office in writing."
- By reference to these terms, it is clear that the Defendant was permitted to share the Claimant's information with third parties as necessary for the performance of the contract between them. In the case of the first retainer that inevitably and obviously involved the sharing of information with the Home Office, and in relation to the second retainer, the sharing of information with the ECtHR. To the extent that the Claimant complains of the sharing of his country of residence or his address with either body, it follows that this occurred in accordance with, rather than in breach of, his contract with the Defendant. It was expressly addressed by paragraph 13.2 of the terms and conditions just quoted. It follows that it involves no breach of confidentiality. There is no particularised allegation of the sharing of documentation or information with other third parties, save for the Defendant's solicitors to which I will turn shortly.
- Moreover, in relation to the Claimant's assertion of an oral contract between himself and the Defendant as to the non-disclosure of his personal information in the context of the ECtHR retainer, the Request for Further Information on 16 September 2024 is again relevant. The Claimant was asked to provide detail of any such oral agreement, and failed to do so. That remains the position now, given that there is no witness statement responsive to the present Defendant's Application from the Claimant. It follows that there is no proper basis for any breach of contract to be asserted either by reference to the written terms of that contract, or any oral addition to it. That is despite the requirement, to which I have already referred, pursuant to paragraph 7.4 of Practice Direction 16, for a Claimant to particularise the words of any oral agreement, and to set out by whom, when and where those words were spoken.
- Beyond these express terms, in relation to the sharing of information between the Defendant and those she instructed to represent her when the Claimant complained to the LeO, the Defendant submits that there has been an implied waiver of confidentiality because the bringing of such a complaint required and permitted the Defendant to instruct and thereafter to supply information to her lawyers. The Defendant relies on two well-known decisions of the Court of Appeal which clearly enunciate that proposition.
- In Paragon Finance Plc v Freshfields [1999] 1 WLR 1183, where the claimant had brought an action for negligence against his former solicitors and then asserted confidentiality over their correspondence, Lord Bingham explained (at 1188E-G):
"When a client sues a solicitor who has formerly acted for him, complaining that the solicitor has acted negligently, he invites the court to adjudicate on questions directly arising from the confidential relationship which formerly subsisted between them. Since court proceedings are public, the client brings that formerly confidential relationship into the public domain. He thereby waives any right to claim the protection of legal professional privilege in relation to any communication between them so far as necessary for the just determination of his claim; or, putting the same proposition in different terms, he releases the solicitor to that extent from the obligation of confidence by which he. was formerly bound. This is an implication of law, the rationale of which is plain. A party cannot deliberately subject a relationship to public scrutiny and at the same time seek to preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. He cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence. But, since the implied waiver applies to communications between client and solicitor, it will cover no communication to which the solicitor was not privy and so will disclose to the solicitor nothing of which he is not already aware."
- The scope of any such waiver was elaborated by Dillon LJ in Lillicrap v Nalder & Son [1993] 1 W.L.R. 94: "…The waiver can only extend to matters which are relevant to an issue in the proceedings and, privilege apart, admissible in evidence. There is no waiver for a roving search into anything else in which the solicitor or any other solicitor may have happened to have D acted for the clients. But the waiver must go far enough, 13 not merely to entitle the plaintiff to establish his cause of action, but to enable the defendant to establish a defence to the cause of action if he has one. Thus, it would extend to matters under earlier retainers, as in the hypothetical example I have given, which established that the experience of the client was, to the knowledge of the solicitor, such that the £ solicitor was not in breach of duty as alleged.
- The Claimant set out his reply to these legal propositions in his Reply to the Defence, as follows:
"The provided precedents do not apply in this case in which there are two separate contracts with two separate confidentiality agreements between the solicitor and the client. Moreover, the Claimant further disputes the applicability of these precedents, which pertain primarily to instances of professional negligence and the limited waiver of confidentiality necessary for legal defences, arguing that they are not pertinent to the present circumstances.
To support his position, the Claimant refers to the following precedents:
Bolkiah v KPMG [1999] 2A.C. 222- This landmark case, decided by the House of Lords, confirms the strict duty of confidentiality owed by legal professionals to their clients. It establishes that confidential information obtained in one matter cannot be disclosed or used in another, unrelated matter without the client's explicit consent. This principle is particularly relevant in this case, where the Claimant asserts that separate confidentiality agreements governed the two separate matters.
Marks and Spencer Plc v Freshfields Bruckhaus Deringer [2004] EWHC 1337 (Ch)- In this case, the High Court reaffirmed that information acquired in the course of acting for a client in one matter must not be used in another matter without explicit permission from the client. The Court emphasised that confidentiality applies separately to each engagement.
In light of these authorities, the Claimant submits that the Defendant's actions in sharing information from one case in the context of another, which the Claimant contends are entirely distinct and governed by separate contracts and confidentiality terms, constitute a breach of the duty of confidentiality. The Claimant maintains that the Defendant was not entitled to disclose such information without express consent and that the cited precedents clearly support this view."
- I have considered each of the cases to which the Claimant directs attention.
- The Bolkiah case concerned a firm seeking to act for the Claimant where it was also instructed by the agency investigating the Claimant. The Court held that where the firm possessed confidential information as a result of acting for the Claimant it was not appropriate also for them to act for such an agency given the risk of confidential information thus acquired coming to the agency's attention through their representation. "" between those acting for the Claimant and the agency were insufficient. In that case, there was no assertion that confidentiality had been waived, expressly or by implication. Rather, the case concerned the inadequacy of measures in place to prevent inadvertent disclosure of that which was recognised still to be confidential.
- The Marks and Spencer case concerned the ambit of the rule preventing a solicitor acting for clients with potentially conflicting interests. On the facts of that case, the Court concluded that the solicitors in question were in possession of a substantial amount of the Claimant's confidential material and "Chinese walls" arrangements would not "be perceived to be – perception here is very important – sufficient". The Court also concluded that there was a real conflict of interest. That is very far from the facts of the present case. Here there is no such conflict of interest, nor is there a need to consider the efficacy or otherwise of "Chinese walls" intended to separate those acting in one matter from those acting in another.
- On the contrary, here, the Claimant had retained the same solicitor in relation to both the asylum and ECtHR claims, and the information that it is now alleged that was disclosed was pertinent as to both, namely the location in terms of country and address in which the Claimant and his family were residing. Moreover, both claims rested on allegations of ill-treatment of the Claimant by, and a threat from, the same third-party state.
- It is also clear on the material that I have seen that the same standard contractual terms relating to data protection applied to each retainer, and that the Claimant by his instruction of the Defendant accepted those terms. Indeed, it could be said that this particularly applied to the ECtHR retainer, which the Claimant entered having already accepted those terms and conditions through his earlier instruction of the Defendant.
- I am satisfied therefore, that there is no reason here to displace the operation of an implied waiver as between the Claimant and Defendant so as to permit the sharing by the latter of information from the former with solicitors she was required to instruct when the Claimant made complaint against her.
- Taking Grounds A and B together, therefore, I am satisfied that the Claimant's allegations of breach of contract and breach of confidentiality are without merit. The material provided is more than sufficient to allow me to conclude that the Defendant could not have disclosed information to any third party that put the Claimant or his family at any demonstrated risk because the material address, the Bagshot address, was not acquired until after the retainer with the Defendant had ended. Even if the sharing of information relating to the Claimant were to be shown, by reference to the case as particularised, this did not involve any breach of contract or breach of confidentiality. Such disclosure would have been in accordance with either the express or implied terms of the contract between them.
- I am satisfied therefore that the Claimant has no real prospects of success on his claim, or to put it another way his prospects of success are fanciful rather than realistic. That being the case, the cumulative effect of the Defendant's grounds A and B is sufficient to require the Court to grant the Defendant reverse summary judgement pursuant to CPR rule 24.3.
Ground C: Causation and Ground D: Evidence of Loss
- Despite the conclusion I have reached on Grounds A and B, it is appropriate to consider the remaining grounds for the Defendant's Application, lest it be argued that the Court's conclusion as to Grounds A and/or B is in error. It is submitted on behalf of the Defendant that a causative link is not established between any disclosure by the Defendant and any loss suffered by the Claimant. It is further submitted that in any event, there is no proper evidence to conclude that the Claimant has in fact suffered loss which should be compensated as a result of the present Claim. It seems logical to take those two grounds together.
- It is central to the Claimant's case that there was a real threat to him and his family which would arise from disclosure to the authorities of a third-party state of his location and address. I have considered above a series of occasions on which the Claimant or his wife shared personal information such as his address with third party agencies. I agree with the Defendant's submission that it is not credible for the Claimant to allege that he was put at risk by the sharing of such data by the Defendant where he was prepared to share it in this way himself. I also note that whilst in his Claim, it was asserted "due to the potential presentation of security related information, I kindly request to restrict the publicity of the hearings. Facts that may be consider in court could potentially impact national security" no information to substantiate this assertion has been provided. This could have been achieved either by the Claimant through a statement in support of his Particulars of Claim or in any statement or other document from any third party served on his behalf.
- Whilst the Claimant may have needed to be circumspect in this regard before the Davison Order, the in camera measures in place by virtue of that Order have removed any such need for circumspection. The Claimant could have provided a statement in response to the present application in this regard, but has not done so. In that regard, I have noted that in his response to the listing of the present application, the Claimant asserted that he could not respond to the Defendant's application until his Part 82 CMP application had been granted, but I agree with the defence submission that the Davison Order affords the Claimant sufficient protection to address in necessary detail both the national security issues to which he alludes and the risk to himself and his family which is essential to his Claim. In his application for CMP he asserts that he is bound by the Official Secrets Act, but again no material has been provided either by him or on his behalf from any relevant third party to that effect.
- The Defendant submits that the combination of this lack of evidence, and the positive evidence of the Claimant and/or his partner providing their address to third parties in public documents is sufficient to demonstrate that there is here no evidence of any threat to the Claimant as a result of any disclosure by the Defendant. Allied to that, it is submitted by the Defendant that there is here no evidence that the Claimant was occasioned loss as a result of any such disclosure.
- The starting point for consideration of this Ground is CPR rule 16.4(1)(a) and the requirement that "Particulars of claim must include— (a)a concise statement of the facts on which the claimant relies…" In the case of this claim, the Particulars of Claim at paragraph 73 provide a list of asserted loss "as a result of the Defendant's breaches of confidentiality and their consequences for his life". It is of note that this list does not purport to be comprehensive, and therefore on its face this list of asserted loss does not meet the requirements of rule 16.4. However, by reference to the pleaded list, there are a number of important respects in which the loss pleaded, on any proper analysis, cannot relate to the alleged breach of contract and/or confidentiality even if this were to be established. In particular:
(a) The first category of loss is the "emergency sale" of what the response to the Request for Further Information confirms to be the Bagshot address, at "below market value". As already addressed above, I am satisfied that the evidence does not begin to demonstrate that this Bagshot address, which was acquired on 20 December 2016 and thus after the retainer between the Claimant and the Defendant had come to an end on 22 September 2016, could have the subject of any disclosure by the Defendant who would have had no knowledge of it. Moreover, in his Particulars of Claim (paragraph 55), the Claimant stated that he learned of the breach of confidentiality on 20 September 2018. However, in his response to the Request for Further Information, the Claimant stated that the Bagshot address was sold on 9 August 2019. The delay of 11 months between his discovery of the revelation of the address and the risk to his family and the sale of the premises is inconsistent with one being the result of the other. On a proper analysis of the material, by reference to the Claimant's own chronology, I am satisfied that causation of this loss cannot be made out. I am fortified in that view by the fact, to which I have already referred, that the TR1 document for the Bagshot address shows it to be registered in the name of the Claimant's wife with no beneficial ownership identified in the name of the Claimant. It follows that even if loss were to have been established, it would not have been that Claimant's loss.
(b) The Claimant next pleads "rent expenses incurred due to the need to change residence for safety reasons". Notwithstanding the requirements of CPR rule 16.4, and the request for further detail in the Request for Further Information, there is no detail as to what premises were rented, at what rent, for what period. In his response to the Request for Further Information, the Claimant averred that he could not provide further detail because of the potential risk to his family. I confess to not understanding how information about the rental of premises in which neither the Claimant nor his family were still residing could lead to any such risk. In any event, the Davison Order presents necessary protection against any such risk. In any event, the need to rent premises is predicated on the need to vacate the Bagshot premises, which, for reasons just addressed, cannot be made out on the material that I have seen to be a consequence of any breach by the Defendant.
(c) The Claimant includes in his list of categories of loss a number of expenses which on any proper analysis were incurred not as a result of any breach by the Defendant but as a result of her earlier performance of the contact with the Claimant. Specifically, this relates to legal expenses incurred in relation to the Claimant's successful asylum application (paragraph 73c), preparation for the ECtHR claim (paragraph 73e), and additional representations relating to that claim (paragraph 73f). There is no logical basis for any of these expenses to be connected to any breach of confidence, even if one could be established.
- In other respects, the pleaded list of alleged loss is too vague as to detail for a loss properly to be established, and this remains the case despite these alleged losses being the subject of the Request for Further Information from the Defendant. In particular, he lists legal expenses which he neither itemises nor particularises (paragraph 73d), legal services which he does not describe further at all (paragraph 73g) and translation services (paragraph 73h) which are not explained any further. In his response to the Request for Further Information, the Claimant declined to provide further detail. Instead, he stated: "The Claimant also reminds that the Defendant has previously violated confidentiality obligations multiple times, creating additional security risks. Under the circumstances, the Claimant does not deem it possible to disclose this information until the court takes measures to protect his family's safety". Again, I do not understand how information about the legal or translation expenses could lead to any risk to the Claimant or his family. In any event, the Davison Order presents necessary protection against any such risk.
- I am satisfied, therefore, that both of the Defendant's Grounds C and D are made out. There is no evidence before the Court of any real threat to the Claimant so as to cause him loss, and his claim as to loss within his Particulars of Claim is not made out. I remind myself that I should not in this context embark on a mini-trial on these issues, and also that the Claimant was not present at the application on 17 March. However, I also remind myself that the Claimant has had the opportunity to put evidence in relation to these issues before the Court, for example through his response to the Request for Further Information and/or through a statement in response to the present application, with the protection of the Davison Order for any confidential information. But I am satisfied that the Claimant has no realistic prospects of success in these crucial respects.
Conclusion
- I have been very conscious in reaching my conclusions in response to the Defendant's application that the Claimant has not been present or represented. For reasons I have set out at length from paragraph 12 above, I am satisfied that the Claimant has chosen not to attend this hearing or to make a proper application to adjourn it. Moreover, having concluded that there is no properly established basis for it to be contended that the Claimant was prevented either from attending the hearing or addressing the Defendant's application as a result of a risk to himself or his family, I am satisfied that it was appropriate to proceed in his absence pursuant to CPR r.23.11.
- As is recognised in r.23.11(2), the Claimant can invite me to revisit any aspect of the decision I have reached in his absence.
- I am satisfied in accordance with the approach in ICI Chemicals v TTE Training, referred to above, that I have available to me the evidence necessary to determine the present application, despite the Claimant's absence. I am also satisfied that I have not been required to undertake a mini-trial to reach the conclusions that I have, and am satisfied that the Claimant has not been disadvantaged by his absence.
- I have concluded for reasons I have set out in detail above, that the Claimant has no real prospects of succeeding in his claim, and applying CPR rule 24.3 I therefore accede to the Defendant's application for reverse summary judgement.
- Finally, I have considered the Defendant's application to revoke the aspects of the Davison Order which relate to anonymity and private hearing of the Claim. The latter aspect falls away with the Claim itself, save in one eventuality addressed below. The former however does not do so automatically. That anonymity is predicated on there being a need to protect the Claimant's identity for the protection of himself and his family. On the analysis of the material before me, I have not found any substantive foundation for that protection to be required. I understand that the anonymity order has caused the Defendant difficulties in addressing the Claimant's complaint against her to the Solicitors Regulation Authority, and so there is a reason to review the Order in any event. Given the lack of evidential support, I have concluded that it is appropriate to revoke the anonymity order made by Master Davison.
- As I have identified, the Claimant will have the opportunity to argue to the contrary if he seeks to invite the Court to revisit this judgement, pursuant to rule 23.11(2). It is clearly appropriate that he has the opportunity to do so, should he wish to, before the anonymity afforded him by the Davison Order is revoked. I shall therefore direct that the Davison Order shall not come to an end in relation to anonymity for 7 days after the handing down of this judgment to provide time for the Claimant to invite the relisting of the present application or to seek to maintain the Davison Order in relation to anonymity. If the Claimant does make such an application, the Davison Order relating to anonymity will remain in force until that application is resolved. Any hearing of that application will itself be undertaken in private.
